Police Liability and Litigation

with Terrence P. Dwyer, Esq.

Pitfalls for police officers on Facebook

There is increased frequency with which officers are being disciplined or finding themselves at the wrong end of a department policy based on their use (or misuse) of electronic media. Specifically, social networking sites such as Facebook, Myspace, and Twitter have caused some unexpected problems for officers. This trend follows other Internet-related disciplinary run-ins resulting from officer blogs, viewing of Internet pornography sites on department computers, and officer websites displaying questionable material in terms of taste and propriety. Most recently, an officer was disciplined for comments he made on the website for a local newspaper.

While the viewing of prohibited Internet sites from the workplace is a cause for employer discipline of an employee in both the public and private sector, the issues surrounding social networking sites may be a bit more muddled.

As a generation of new officers who have grown up with access to these social networking sites enter the ranks, they are less inclined to see the problem with social networking sites and employer placed limits on their off-duty use. Just as a prior generation of officers were forbidden to frequent certain establishments when off-duty, a new generation of officers may be precluded from their activity on the Internet.

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One agency in New York State has sought to define these limits by enacting a policy for an officer's use and postings on social networking sites. City of Utica Police Chief Mark Williams has crafted a use policy that focuses on protecting the reputation of the department and the individual officer. An ex-con arrested in NYC for possession of a weapon was able to have charges dismissed by using the arresting officer's MySpace and Facebook statuses against him. At the criminal trial, the NYPD officer was questioned by defense counsel as to why his Facebook status as the trial neared had him "watching 'Training Day' to brush up on proper police procedure." He further had to explain why his MySpace page was set to the mood of "Devious" on the day of the arrest. The officer also had to explain comments he made on a video about using excessive force on suspects.

This officer, as reported in the Gothamist, had a prior suspension for steroid usage. The suspect alleged the officer planted the gun found on him and with the help of the officer's online postings was able to convince a jury. Incidents such as that which occurred in this case don’t just embarrass the officer, but compromise of the integrity of police work. Police departments across the country are looking to implement departmental policies on officer use of social network sites. Others, like the City of Utica Police Department and the Minneapolis Police Department, have already done so.

U.S. agencies and administrators do not hold exclusive claim to such disciplinary problems within the ranks. A January 2010 article in the online version of the London Daily Mail reported a number of British officers disciplined or fired for looking at pornographic website while on duty. This report was followed by a February report in the online ZDNet UK that Ministry of Justice and Metropolitan Police have been suspended or fired for misuse of Twitter and Facebook accounts. Scotland Yard responded by issuing a guide for officers on the use of such sites. One of the rules is for officers not to identify themselves as police employees, the other is that if they do identify themselves as officers they are to disclaim that their views do not reflect those of the employer.

In the U.S., many officers rely on the First Amendment right to free speech and their off-duty status as protection from any job action. This reliance, however, is often misplaced and is likely more so in light of the U.S. Supreme Court ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), which put further limits on a public employees free speech and narrowly defined the contours of that speech.

Police administrators are well advised to adopt a social networking policy if they have not already started to do so. Police officers are advised to keep content unobjectionable at the least, but would be better off staying clear of online postings and video rants. The democratization of media use has created a ‘big brother’ of monstrous proportions and can quickly become a trap for the careless officer.

About the author

Terrence P. Dwyer retired in 2007 from the New York State Police after a 22-year career. He is now an Associate Professor in the Justice and Law Administration Department at Western Connecticut State University and an attorney in private practice representing law enforcement officers in discipline cases, critical incidents, and employment matters.